Cranch, C. J.,
delivered the opinion of the Court upon the demurrers.
The second plea sets up, by way of defence, supposed breaches of covenant on the part of the plaintiffs, and the questions occur, 1st. Whether any of the facts stated constitute such a breach of covenant on their part; and 2d. If so, then whether the covenants, so broken by the plaintiffs, were precedent covenants on their part. Both of which questions must be answered in the affirmative, or the plea must be adjudged bad.
Do any of the facts averred in the plea constitute a breach of covenant on the part of the plaintiffs ?
The facts stated in that plea are, that the brig did not pursue the voyage and voyages which the defendant ordered and appointed for her, and carry on the legal trade in which the defendant engaged and employed her, but did, without any sufficient or lawful cause therefor, depart and deviate from the same ; and did, on the 27th of November, 1820, while subject to the control of the defendant, omit and fail to proceed from Port au Prince to Crooked Island, as the plaintiff had ordered and appointed, and proceeded to Havana, against the orders and directions of the defendant; and on the 30th of December sailed from Crooked Island to Ragged Island, instead of proceeding to Mobile, according to the orders of the defendant; by which deviation, and violation of orders the voyage was defeated, and the vessel and cargo lost, on the 20th of January, 1821.
This plea is founded upon the supposed obligation of the [109]*109plaintiffs, either by express covenant, or by implied duty as owners, to see that the brig should perform such voyages as the defendant should indicate; and that the discharge of such obligation or duty was a condition precedent to the right of the plaintiffs to recover the sum stipulated to be paid for the hire of the brig. No such express covenant is found in the charter-party.
The only express covenants, on the part of the plaintiffs, are: 1. To let or hire the brig to the defendant, to be used by him, from Bath to Havana, and from thence to Mobile or elsewhere, in any legal 'trade, for the term of twelve months; 2. That she shall be tight, stiff, stanch, and strong, well-victualled and manned, at the plaintiff’s expense, during that period; the dangers of the seas excepted.
If there be any covenant that the brig should go to Havana, or any other port, it is a covenant on the part of the defendant, and for the security of the- plaintiffs ; for if the brig had never arrived at Havana, the plaintiffs, according to the case of Gibbon v. Mendez, 2 B. & A. 17, could never have recovered any thing for the hire ; because no payment was to be made by the defendant until the arrival of the brig at that port.
Nor was there an implied obligation upon the plaintiffs, as owners, to. see that the brig should perform such voyages as the defendant should indicate. The possession of the whole vessel and crew was delivered to the defendant, to use them in such voyages, and in such lawful trade as he should think proper, with the single limitation of going first to Havana. In that respect, the vessel, the master, and mariners were, as is admitted by the plea, subject to the order and control of the defendant.
He had a right to direct the lading and destination of the brig, and he was to pay all port charges and pilotages at every place to which she might go. No orders, in these respects, were to be given to the master or mariners, by the plaintiffs. That it was the intention of the parties that the possession of the brig should belong to the defendant is evident from his covenant in the memorandum at the foot of the charter-party, that in case of a war with Spain, he should deliver the brig to the plaintiffs *at Bath, “ he paying charter at the rate within specified until the time she is so delivered, the dangers of the seas and enemies excepted.”
In regard, therefore, to the destination and loading of the vessel, the defendant himself was owner pro hac vice ; and the plaintiffs were under no implied obligation -to see that the specific voyages should be performed, which the defendant might project.
[110]*110This was not a contract of freight, but of hire. The plaintiffs did not covenant to carry goods, or to perform any specific voyage. In Story’s Abbott, p. 273, it is said, that if the price of transportation of goods be paid upon their being laden on board the vessel, even “ this payment, although commonly called freight, is not properly so denominated, that word denoting the price rather of actual carriage than of receiving goods in order to be carried; and therefore in the case of Blakey v. Dixon, 2 B. & P. 321, the Court, admitting that an action might be brought for money agreed to be paid on receiving the goods on shipboard in order to be transported, decided that such money could not be recovered by the name of freight.” Freight is a compensation for the carriage of goods. Watson v. Duykink, 3 Johns. 335.
In the present charter-party the word freight is cautiously avoided, even at the expense of some awkwardness of expression. The plaintiffs agree to “ let; or hire,” not “ let to freight,” as is usual in charter-parties of affreightment. The instrument is called “ this memorandum of an agreement; ” not “ this charter-party of affreightment,” as is usual in contracts for freight. The word voyage is not used in any part of the instrument, probably because that word, in common acceptation, includes the idea of a mercantile adventure, and not merely the act of going from one port to another; and because the price to be paid was for the time and ability to use the vessel, and not for the actual use of her. The word “freight” was probably avoided because it implied an actual transportation of goods, and it might possibly be said that no freight would be due if no goods should be transported. The usual words “ for a voyage,” were probably avoided because it might be said that no freight would be earned until the voyage should be ended.
The parties have substituted the word “ charter ” for the usual term “ freight.” Thus the defendant agrees “ to pay $600 from time to time as the charter of the said brig amounts to that sum; that is to say, when the said brig earns $600, at the rate of the before-mentioned charter, it is to be paid in Spanish milled dollars,” &ct And again, the defendant agrees “ that the charter shall commence nine days before the brig’s leaving the wharf for sea ; ” and in the memorandum it is provided that, in a certain event, the defendant is to deliver the brig to the plaintiffs at Bath, “ he ” (the defendant) “ paying charter at the rate within specified.”
The defendant was at liberty to take in goods on freight. In that case the defendant would be entitled to the freight and the plaintiffs to the hire, or the charter, as it is called in the agreement ; and each might insure his own interest. The plaintiffs [111]*111might insure the hire, the defendant the freight. If the defendant had taken in goods on freight, the shipper’s remedy for nondelivery of those goods would have been against the defendant as owner pro hac vice, and not against the plaintiffs.
The Court is therefore clearly and unanimously of opinion that this is a case of hire and not of freight. The price was earned by time, not by the carrying of goods, or the ending of a voyage, except as to the payment of the first sum of $600 at Havana.
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Cranch, C. J.,
delivered the opinion of the Court upon the demurrers.
The second plea sets up, by way of defence, supposed breaches of covenant on the part of the plaintiffs, and the questions occur, 1st. Whether any of the facts stated constitute such a breach of covenant on their part; and 2d. If so, then whether the covenants, so broken by the plaintiffs, were precedent covenants on their part. Both of which questions must be answered in the affirmative, or the plea must be adjudged bad.
Do any of the facts averred in the plea constitute a breach of covenant on the part of the plaintiffs ?
The facts stated in that plea are, that the brig did not pursue the voyage and voyages which the defendant ordered and appointed for her, and carry on the legal trade in which the defendant engaged and employed her, but did, without any sufficient or lawful cause therefor, depart and deviate from the same ; and did, on the 27th of November, 1820, while subject to the control of the defendant, omit and fail to proceed from Port au Prince to Crooked Island, as the plaintiff had ordered and appointed, and proceeded to Havana, against the orders and directions of the defendant; and on the 30th of December sailed from Crooked Island to Ragged Island, instead of proceeding to Mobile, according to the orders of the defendant; by which deviation, and violation of orders the voyage was defeated, and the vessel and cargo lost, on the 20th of January, 1821.
This plea is founded upon the supposed obligation of the [109]*109plaintiffs, either by express covenant, or by implied duty as owners, to see that the brig should perform such voyages as the defendant should indicate; and that the discharge of such obligation or duty was a condition precedent to the right of the plaintiffs to recover the sum stipulated to be paid for the hire of the brig. No such express covenant is found in the charter-party.
The only express covenants, on the part of the plaintiffs, are: 1. To let or hire the brig to the defendant, to be used by him, from Bath to Havana, and from thence to Mobile or elsewhere, in any legal 'trade, for the term of twelve months; 2. That she shall be tight, stiff, stanch, and strong, well-victualled and manned, at the plaintiff’s expense, during that period; the dangers of the seas excepted.
If there be any covenant that the brig should go to Havana, or any other port, it is a covenant on the part of the defendant, and for the security of the- plaintiffs ; for if the brig had never arrived at Havana, the plaintiffs, according to the case of Gibbon v. Mendez, 2 B. & A. 17, could never have recovered any thing for the hire ; because no payment was to be made by the defendant until the arrival of the brig at that port.
Nor was there an implied obligation upon the plaintiffs, as owners, to. see that the brig should perform such voyages as the defendant should indicate. The possession of the whole vessel and crew was delivered to the defendant, to use them in such voyages, and in such lawful trade as he should think proper, with the single limitation of going first to Havana. In that respect, the vessel, the master, and mariners were, as is admitted by the plea, subject to the order and control of the defendant.
He had a right to direct the lading and destination of the brig, and he was to pay all port charges and pilotages at every place to which she might go. No orders, in these respects, were to be given to the master or mariners, by the plaintiffs. That it was the intention of the parties that the possession of the brig should belong to the defendant is evident from his covenant in the memorandum at the foot of the charter-party, that in case of a war with Spain, he should deliver the brig to the plaintiffs *at Bath, “ he paying charter at the rate within specified until the time she is so delivered, the dangers of the seas and enemies excepted.”
In regard, therefore, to the destination and loading of the vessel, the defendant himself was owner pro hac vice ; and the plaintiffs were under no implied obligation -to see that the specific voyages should be performed, which the defendant might project.
[110]*110This was not a contract of freight, but of hire. The plaintiffs did not covenant to carry goods, or to perform any specific voyage. In Story’s Abbott, p. 273, it is said, that if the price of transportation of goods be paid upon their being laden on board the vessel, even “ this payment, although commonly called freight, is not properly so denominated, that word denoting the price rather of actual carriage than of receiving goods in order to be carried; and therefore in the case of Blakey v. Dixon, 2 B. & P. 321, the Court, admitting that an action might be brought for money agreed to be paid on receiving the goods on shipboard in order to be transported, decided that such money could not be recovered by the name of freight.” Freight is a compensation for the carriage of goods. Watson v. Duykink, 3 Johns. 335.
In the present charter-party the word freight is cautiously avoided, even at the expense of some awkwardness of expression. The plaintiffs agree to “ let; or hire,” not “ let to freight,” as is usual in charter-parties of affreightment. The instrument is called “ this memorandum of an agreement; ” not “ this charter-party of affreightment,” as is usual in contracts for freight. The word voyage is not used in any part of the instrument, probably because that word, in common acceptation, includes the idea of a mercantile adventure, and not merely the act of going from one port to another; and because the price to be paid was for the time and ability to use the vessel, and not for the actual use of her. The word “freight” was probably avoided because it implied an actual transportation of goods, and it might possibly be said that no freight would be due if no goods should be transported. The usual words “ for a voyage,” were probably avoided because it might be said that no freight would be earned until the voyage should be ended.
The parties have substituted the word “ charter ” for the usual term “ freight.” Thus the defendant agrees “ to pay $600 from time to time as the charter of the said brig amounts to that sum; that is to say, when the said brig earns $600, at the rate of the before-mentioned charter, it is to be paid in Spanish milled dollars,” &ct And again, the defendant agrees “ that the charter shall commence nine days before the brig’s leaving the wharf for sea ; ” and in the memorandum it is provided that, in a certain event, the defendant is to deliver the brig to the plaintiffs at Bath, “ he ” (the defendant) “ paying charter at the rate within specified.”
The defendant was at liberty to take in goods on freight. In that case the defendant would be entitled to the freight and the plaintiffs to the hire, or the charter, as it is called in the agreement ; and each might insure his own interest. The plaintiffs [111]*111might insure the hire, the defendant the freight. If the defendant had taken in goods on freight, the shipper’s remedy for nondelivery of those goods would have been against the defendant as owner pro hac vice, and not against the plaintiffs.
The Court is therefore clearly and unanimously of opinion that this is a case of hire and not of freight. The price was earned by time, not by the carrying of goods, or the ending of a voyage, except as to the payment of the first sum of $600 at Havana. The arrival of the vessel at Havana was a condition precedent to the payment of that sum, not because it was the freight of goods, nor because the voyage was there ended; but because, until the arrival of the brig at Havana the casus fcederis would not have occurred.
The Court being of opinion that there was no obligation upon the plaintiffs, either express or implied, to see that the vessel performed the voyage, projected by the defendant, it is unnecessary to consider the other question, viz. whether the plaintiff’s discharge of such an obligation, if it had existed, would have been a condition precedent to the payment of the sum stipulated to be paid for the hire of the vessel; and' all the cases may be laid aside which were cited to show that freight is not due until the goods are delivered, or the voyage ended ; and to show what covenants are precedent, and what are mutual.
The Court has carefully examined the authorities cited, and many more, to show in what cases the owner, and in what the charterer, shall be considered as the owner pro hac vice; and they find no case in which the charterer has been held to be owner pro hac vice, so strong as the present; and none in which the possession of the vessel, for the time, has been more completely transferred to the charterer.
It would occupy too much time to remark particularly upon the authorities which have been consulted upon that point.
The Court has also examined the declaration, and can see no substantial fault in it; and we are unanimously of opinion that the 2d plea is bad.
■ The 3d plea avers a deviation by the master and crew, while the vessel was lawfully subject to the orders and directions of the defendants; and
The 4th plea avers that the captain and crew deviated, whereby the vessel and insurance were lost.
The Court is of opinion that both these pleas are bad for the reasons before given in regard to the 2d plea.
After the opinion of the Court was given, the cause came oft for trial upon the issue joined upon the first plea, which was, in substance, that the defendant “ hath paid to the said plaintiffs [112]*112all and every such sums of money as were become due and payable from the defendant, according to the tenor and effect, true intent and meaning of the said articles of agreement; and of this he puts himself on the country,” and the plaintiffs likewise.
Upon the trial of this issue, Mr. Barrett, for the plaintiffs, offered the deposition of Mr. Weber, the master of the brig, taken under a commission from this Court.
Mr. Bradley, for the defendant, objected that it did not appear that William Terry, -who certifies himself to be a justice of the peace, and that the commissioners took before him the oath required by the commission, was a justice of the peace.
The CouRT, however, overruled the objection, saying that the certificate of the commissioners was sufficient evidence that the oath had been properly taken. They are quoad hoc the officers of this Court, and are to be believed.
In the course of the trial, which occupied several days, the Court (Cranch, C. J., absent,) instructed the jury, at the request of the plaintiff’s counsel, “ that the plea is no traverse of any averment in the declaration necessary to establish the primary obligation to pay what is therein demanded, nor imposes on the plaintiffs any necessity, in supporting the issue on their part above joined, to prove any averment in their declaration; but1 that the whole onus probandi, under the affirmative plea of payment, is on the defendant to prove such payment as he has alleged; ” the Court being of opinion, and so expressing it to the jury, that upon the issue joined in this case, and which the jury had been sworn to try, the defendant had assumed upon himself the burden of proving that he had paid the hire of said vessel for the time stated in the declaration, at the rate of $425 per month.”
The defendant took a bill of exceptions and carried the cause to the Supreme Court, where it was reversed (5 Peters, 141,) for error in that instruction; but Mr. Justice Thompson, who delivered the opinion, intimated that the judgment of this Court upon the demurrer, was probably correct.